Online research in philosophy

The notion that individuals have the right to define their identities, as fickle as those identities may be, is an important constitutional value that, among others, is embraced by our constitutional system. Through many different mechanisms we shape our identities and select how to project them. Those identity-formation tools include decisions we make regarding the way we choose to live our lives in fundamental matters. One important constitutional hook on which this value hangs, in U.S. and Puerto Rico Constitutional Law, is decisionmaking privacy. The article considers how identity-definition in Puerto Rico and United States constitutional law may be used to bolster legal and political claims in contexts such as intimate sexual relations, same-sex marriage and unconventional family relations. Because the Constitution of Puerto Rico is a result of the combination of different constitutional traditions, our right to privacy is infused with American and Continental notions of privacy and human dignity. It thus provides an ideal context to analyze decisionmaking privacy as a constitutional repository for identity-definition values.

Since former President Soeharto was forced to resign in 1998, the Indonesian judiciary has been significantly reformed. A Judicial Commission was established to monitor its performance. A Constitutional Court was also created; one of its tasks is to decide disputes between state institutions and to review the constitutionality of statutes. This paper discusses the Constitutional Court case in which several Supreme Court judges alleged that the Constitution’s guarantee of judicial independence precluded the Judicial Commission from supervising the Supreme Court’s performance by critically analysing its decisions. The Constitutional Court accepted this argument, declaring that the Indonesian Constitution prohibited the Judicial Commission from performing this function. This paper discusses this case and its potential ramifications.

One of the most basic principles of American constitutionalism is that Congress cannot statutorily overturn the Supreme Court's constitutional decisions. Although it can reverse statutory decisions, Congress is not able to supersede the Court's constitutional rules because it cannot change the source of law being interpreted - the Constitution - outside of the amendment process of Article V. Given the problems with judicial supremacy for many constitutional theorists, there has been a noticeable gap in the literature on the ways in which Congress can, in fact, successfully challenge the Court's reading of the Constitution. Few scholars provide any account of how other governmental institutions or even the constitutional culture at large can directly confront and overturn a given constitutional rule. This Article seeks to address this gap in the scholarship by highlighting three areas - three lacunae - where Congress has the ability to displace constitutional rules by statute. Congress has the power to overturn constitutional decisions in three specific areas within the federalism realm: state sovereign immunity under the Eleventh Amendment, intergovernmental tax immunity for both state and federal governments, and the Dormant Commerce Clause. This Article will demonstrate that judicial decisions on these subjects create true constitutional rules and that the acceptance of Congress's power to overturn these decisions tells us something important about our Constitution and our federalism. The existence of these three anomalies suggests that adaptability and accommodation often take constitutional precedence over theoretical purity, especially when issues of federalism are involved.

This book explores two basic questions regarding constitutional theory. First, in view of a commitment to democratic self-rule and widespread disagreement on questions of value, how is the creation of a legitimate constitutional regime possible? Second, what must be true about a constitution if the regime that it supports is to retain its claim to legitimacy? Howard Schweber shows that the answers to these questions appear in a theory of constitutional language that combines democratic theory with constitutional philosophy. The creation of a legitimate constitutional regime depends on a shared commitment to a particular and specialized form of language. Out of this simple observation, Schweber develops arguments about the characteristics of constitutional language, the necessary differences between constitutional language and the language of ordinary law or morality, as well as the authority of officials such as judges to engage in constitutional review of laws.

The constitutional subject : singular, plural or universal? -- The constitutional subject and the clash of self and other : on the uses of negation, metaphor, and metonymy -- Reinventing tradition through constitutional interpretation : the case of unenumerated rights in the United States -- Recasting and reorienting identity through constitution-making : the pivotal case of Spain's 1978 Constitution -- Constitutional models : shaping, nurturing, and guiding the constitutional subject -- Models of constitution making -- The constitutional subject and clashing visions of citizenship : can we be beyond what we are not? -- Can the constitutional subject go global? imagining a convergence of the universal, the particular, and the singular.

Constitutional theory and design have been dominated by the specter of legislative and executive institutions voraciously seeking to expand their powers. But in modern political practice, the flight from political responsibility - the problem of political abdication - is at least as serious a threat. Constitutional theory has paid too little attention to this problem. And as a matter of institutional design, we are still struggling to find tools to force political actors to take responsibility they would rather avoid. Abdication, not aggrandizement, is the common thread that unites Congress's virtual absence from any major policymaking role on terrorism-related issues in the first five years after September 11th and the recent reauthorization process for the Voting Rights Act (VRA). This essay shows how the recent VRA renewal process presses scholars to consider the phenomenon of political avoidance and its implications for institutional design and constitutional theory.

Few constitutional scholars would dispute the proposition that the Supreme Court and the president each possess the legal authority to exercise meaningful constitutional review. This idea is uncontroversial, in part, because constitutional review makes pragmatic sense in a nation that stresses systematic, structural restraints on government power. It is also uncontroversial because the Framers clearly planted the seeds of departmental constitutional review throughout the Founding documents. Despite their strong support for this sort of constitutional review, however, the Framers failed to articulate the manner in which each "department" (or "branch") should exercise its interpretive powers in relation to other branches. Rather than identify which branch's interpretations should receive the most constitutional deference, the Framers appeared to have permitted some degree of interpretive chaos, in which multiple branches could exercise the power of constitutional review, but no branch was formally or *informally* bound by the interpretations of others. To decipher the way in which the Framers believed that each department's interpretive powers would interrelate, this Note reexamines the indicia of constitutional review present within many Founding documents. It then argues that even though the Framers intended to establish a departmental interpretive system, they *also* intended to create an interpretive system that approximates the modern paradigm of deductive judicial supremacy. Though scholars often view judicial supremacy and departmentalism on mutually exclusive grounds, this Note argues that departmentalism that is filtered through an admittedly *soft* deductive judicial supremacy model best characterizes the Framers' conception of constitutional interpretation. In other words, not only are departmentalism and judicial supremacy intellectually compatible, but the Framers specifically intended to create a system that built upon both. In advocating an originalist defense of judicial supremacy, this Note aims to succeed where previous scholars have failed -- though, of course, it does so by advocating a softer form of judicial supremacy than many scholars ordinarily defend. To help explain its deductive model, in which Supreme Court decisions provide the most appropriate -- though not the only -- barometer of statutes' constitutionality, this Note also proposes a unique interpretive framework that approximates how the Framers believed a multi-layered system of heirarchical constitutional review should realistically apply.

The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions. Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule's recent essay, "Interpretation and Institutions." Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn. Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision. Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argues that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue.

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.